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Delaware judge discovers hidden entity recruiting people to be patent trolls

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Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#271

I'm a patent agent and I worked in Google's Patent Litigation department. This is a slight hyperbole, but only slight: I can bust any software patent. I found the prior art that prevented Google Maps from being shut down in Germany: https://www.themarysue.com/google-maps-facing-german-ban/ @btrettel is right that examiners need more time, but that would mean the PTO would have to hire a lot more of them. A better sol…

Exactly, patents on software are just insane and anticompetitive. I can’t really think of a single good reason to have them. This is tech, it’s a race, everyone playing already knows that. All parents do is slow innovation or in some cases stop it entirely

I agree how today's parents slow innovation in their children or in some cases stop it directly \s

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#272
post #218

Earlier quoted context omitted.

Is there a way for you to interact with me without being insulting? I'm trying to learn something and it's getting in the way. If the problem isn't about increasing costs for large players, then what about decreasing those for small players?

Because these questions are so obvious it seems like trolling, sorry for the impatience. Having run businesses, been involved with patents and the courts, some things are blindingly obvious. So I'll step back a bit. First, the courts are insanely overworked, so things take forever, lawsuits are insanely expensive for both sides. Most importantly, the entire court system is structured to be anti-scaleable. Even attemp…

Moreover, let's go outside your paradigm of costs, and do a thought experiment that assumes that it is solved. Even then, this would be a bad solution, because it takes too much time for either side.

If you are a genuine inventor, and have a truly novel, original, valuable invention, you want the patent to deployed and fully enforceable as rapidly and fully as possible. Waiting years for multiple cases to sift their way through the courts only allows others to infringe for those years. Even if you rightly collect judgements in the end, those are unlikely to make up for the market leadership opportunity cost you lost to the infringers.

If, OTOH, you are a small-medium business being sued for a bad patent, you also want it clearly defined that the patent is invalid, so you can move on. Waiting for multiple courts to decide only costs you more money, distraction, and market opportunity.

What is really good for everyone is a very serious, fully funded, fully staffed and highly competent National Patent Office, which can effectively and reliably determine patent-ability, and is widely respected for its expertise. That is best for everyone because there are clear boundaries. It would also mean far fewer patents because there are a LOT of junk patents out there.

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#273

Earlier quoted context omitted.

I'll agree that many of the tools are bad. I have a particular dislike for how slow Word is. But, I don't think that transitioning everything to the cloud is necessarily going to help. Word is slow many times because it freezes up when syncing. And a lot of the tools are good. EAST and PE2E Search have a lot of great features for power searchers that I'd like to see in tools outside of the USPTO. (But they also have…

But wouldn’t doubling the time reduce pressure for innovation here?

Pressure for (perceived) innovation is one of the things that drives bad patents. Removing this pressure has positive consequences (in addition to the negative consequence of potentially novel IP not being protected in time--but is that actually a bad thing? I don't know).

There's a parallel also in the world of academic paper publishing--the pressure for constantly innovating and publishing is a major reason for bad publications.

I am speaking anecdotally, from my experience as a past PhD student and a current young professional in the research industry.

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#274

Earlier quoted context omitted.

I'll agree that many of the tools are bad. I have a particular dislike for how slow Word is. But, I don't think that transitioning everything to the cloud is necessarily going to help. Word is slow many times because it freezes up when syncing. And a lot of the tools are good. EAST and PE2E Search have a lot of great features for power searchers that I'd like to see in tools outside of the USPTO. (But they also have…

But wouldn’t doubling the time reduce pressure for innovation here?

How would the examiners be able to turn "limited time" into incentive to create "innovation in tools" [that they themselves aren't the ones building]?

Old orgs with old tools aren't improved by putting more pressure just on the users of those tools.

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#275

Current USPTO patent examiner here. The most effective way to eliminate bad patents would be to give examiners more time, say double the time across the board to start. If an examiner can't find prior art in the little time they're given, and they have no other reasons to reject the application, they'll have to grant it. The amount of time was (basically) set in the 1970s based on data from the 1960s. There have been…

I hope you don't mind if I ask a few nosy questions. 1. How much time do you get given to perform a search? How comprehensive is searching (and how much time is given) if PCT or EP searches have already been performed? 2. Given existing citations (e.g. from a US PCT search), how long do you get to perform examination? How long do you get given for later reports? 3. How common is searching following amendments and how…

1. and 2. Depends heavily on the patent classification and seniority. I get around 20-25 hours for a first action, much less for subsequent actions. I'm a newbie, though. Primary examiners in my area probably get only about 10-13 hours for a first action. The time I get is for both search and examination.

Comprehensiveness varies and can be independent of whether other offices have done searches. It can be hard to get even two examiners at the same office to agree on what good prior art is. I've inherited applications from an examiner who retired and I didn't always agree with their prior art.

I tend to use foreign searches as starting points for my own searches. I'd guess about half the time what I find is the same as the foreign search or comparable but different. Often I find clear deficiencies in foreign searches.

The time I get does not change if there are foreign actions. I get so little time that I hesitate to even write the previous sentence in case it gives upper management ideas about where to reduce time...

Searching at patent offices is never particularly comprehensive in my experience. If someone wants a comprehensive search, their main option is to do it themselves.

3. I am required to do at least a cursory search after any amendment as far as I'm aware. How detailed the search is varies. See the next point for how much time I get.

4. I get about 4 hours for a final rejection. The US has "after-final" actions as well which can provide up to 3 hours if I recall correctly, but are much more limited in scope and rarely used properly by applicants in my experience. After-final actions should be used mainly to cancel any claims not declared allowable by the examiner, in my opinion.

5. All USPTO examiners have classification as one of their duties now, but they are given very little time for this. The time varies between 0 time, 30 minutes, and 1 hour depending on the results of an approval process.

Longer version: The USPTO recently made some significant changes to classification and docketing. Applications are docketed to examiners based on a combination of the CPC and USPC classification now, with the eventual goal of eliminating the USPC component of the docketing system. Here's how it works: Poorly paid contractors classify patent applications. Based on the classification from the contractors, applications are docketed to examiners. Examiners then have the opportunity to correct the classification if it's wrong. As it turns out, poorly paid contractors don't classify well. I'd guess that about 10% of the applications I'm docketed have serious classification issues. The precise number probably varies appreciably between examiners. I will try to correct the classification issues with a process called a C* challenge. This requires approval by examiners called SCEs. The SCEs will check if they agree with the examiner's proposed classification. Sometimes they'll add their own classification, but usually not. The amount of time an examiner gets is zero if none of the changes are approved, 30 minutes if the changes are approved but the changes do not cause the application to be transferred from the examiner, and 1 hour if the changes are approved and the changes cause the application to be transferred. Unfortunately, properly classifying applications frequently takes far longer than 1 hour. This is particularly true when examiners have to classify applications in areas they know little about.

I don't bother changing the classification at this point if it seems mostly right because the amount of time I get for correcting the classification is so small. I will only try to correct the classification if it's egregiously wrong.

6. I think I saw some screenshots of the EPO's software once, but I don't really know how it compares to what the USPTO uses. For what it's worth, the USPTO's new public search tool is very similar to the internal tool. The main difference is that the USPTO decided to only include US patent documents in the public version, which is a shame. https://ppubs.uspto.gov/pubwebapp/static/pages/landing.html

(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#276

Current USPTO patent examiner here. The most effective way to eliminate bad patents would be to give examiners more time, say double the time across the board to start. If an examiner can't find prior art in the little time they're given, and they have no other reasons to reject the application, they'll have to grant it. The amount of time was (basically) set in the 1970s based on data from the 1960s. There have been…

What do you think about the idea of having a "challenge period", i.e. a time where other parties than the applicant can come up with solutions to the problem stated in the patent (or with prior art)? I bet there is an army of volunteers that would want to help fight illegitimate patents. Also, if $BIGCORP tries to file a patent application, then why can't $SMALL_COMPETITOR contest it during such a challenge period wi…

The original article describes three small (actually - one-person) companies going after some big guys. There is a patent troll behind them, but the article mentions that such a discovery is not an ordinary thing to do. At the patent troll is still a much smaller company than defendants- I guess.

Besides, the idea of punishing me for being successful, that is - having more sales of my product, while popular, seems extremely counterproductive to me.

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#277

Earlier quoted context omitted.

what does the cloud have to do with the tools being old and creaky? Is there some magic sauce that makes the search suddenly useful once it's sitting in AWS? I ask because I see this ALL the time. technical people abusing business ignorance by using initiatives to improve tools to "move to the cloud". Unless you're telling me the problem you're solving has to do with elastic demand or too much costs maintaining infra…

"move to the cloud" is a top strategic objective in my org I have explained why it should not be, but Mgmt does not care. Everyone's doing it. We NEED to do it. I believe we are in a mix of FOMO, resume-driven development and empire-building. Ok, I can tell that you want me to expand. Here goes: Cloud may offer: 1) improved scalability (both horizontal and vertical) 2) improved availability 3) reduced cost None of th…

Our company matches what you describe to a T. We have some small web servers/services, but none under any significant load. No need to scale dynamically, yet we use Docker (with Swarm) on prem for like 3 worker nodes. So much complexity added because of FOMO and resume-padding.

And then the key decision-maker says if we don't do cloud architected systems, we'll have trouble recruiting developers with suitable skills...

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#278
post #269

Earlier quoted context omitted.

Yes, and again, a business with a PO Box and a registered agent will be deemed "sketchy" by this judge, and more generally by the judicial system and in some cases the IRS as well. I realize a lot of business do this, and have survived fine, but that's not the point I'm making.

I think you’re now conflating the principal place of business activity with a mailing address. The principal place of business has to be an address where actual business activity takes place. That establishes your business nexus and which states/agencies have jurisdiction over your business. It doesn’t matter if it seems “fine” to put down a virtual address in the principal location field, it’s not sketchy — it’s sim…

Yea everything you've said is correct.

I'm saying this is simply not how a lot of small to medium remote businesses operate anymore vis a vis my original comment. ¯\_(ツ)_/¯

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#279
post #126

Earlier quoted context omitted.

The article says “All they had to do was become the owners of a patent assertion entity, and accept the "liabilities" that come along with that.” Can you say more what this means? What were the risks these people were (I would guess unknowingly) accepting in return for their 5-10% if things went ‘well’?

They seemed unsure at the hearing of what exactly they had signed up for. Certainly, their LLCs could be subject to attorneys fees if the Court awards fees (which it generally only does in exceptional cases) or for sanctions based on attorney behavior. However, normally, only their LLCs would be liable rather than the owners personally--unless they fail to observe the corporate formalities.

> They seemed unsure at the hearing of what exactly they had signed up for.

One even had no idea what the name of the patent "he" owned was, or what it was for.

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#280

Earlier quoted context omitted.

I used a patent lawyer who said the patent had to be filed using a fax machine. For those who are too young, a fax machine is this arcane device that used to be everywhere, like a remote photocopier. Got the US patent dated 2013. Was the lawyer pulling my leg?

It wouldn't surprise me, as faxes have some really weird legal exceptions carved out for them. For example, a faxed document is considered equivalent to the original, but a scanned image is not. So even though a scanned image signed with your private key would be much more verifiable than a faxed copy that is transmitted without encryption and printed in a shared office, the law considers the fax as better than the s…

Faxes are (or were originally) point-to-point electronic transmissions -- one fax machine dialing via POTS to another fax machine. In addition, the received fax, and the response sheet received by the sender, have time and date stamps that give legally-admissible proof of transmission and reception (and the sender will get a report of failure if that's the case as well).

As a former fax server administrator (and troubleshooter/maintainer of everyday standalone fax machines), I think the point-to-point nature of traditional, non-Internet fax is the killer feature: no packets split up and resting on intermediate servers, etc. Fax servers have one or more individual fax modem cards, so the only network involved is before or after the actual fax transmission.

I know fax is outdated. There are other effective technologies to replace it. But I've found myself more than once speaking up as a defender of the technology because, as originally used and codified into law, it serves a specific purpose and, as a bonus, if you know how to use a photocopier and a telephone it's drop-dead simple to use.

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